Corporate Formation Lawyer
“C” Corporation vs. “S” Corporation vs. LLC?
What’s the difference between a “C” Corporation and an “S” Corporation?
A “C” Corporation and an “S” Corporation are exactly the same in respect to liability protection. The difference is in how you are taxed. A “C” Corp has what is referred to as a double taxation. First, the corporation itself is taxed on the profits it makes and when those profits are distributed to the Shareholders as a dividend, the Shareholders report the dividend as income on their individual tax returns. So essentially you are paying taxes twice on the same money your corporation makes, thus the double taxation.
An “S” Corporation is a tax election a corporation can make in order to eliminate the corporate level tax. This allows the earnings to pass through the corporation to the Shareholders. You only pay taxes once on the earnings. This is a great tax advantage, possibly cutting the taxes on a corporation’s profits in half. However, you must qualify in order to elect to be taxed as a Sub S. The essential requirements are:
- The corporation cannot have more than 100 shareholders
- All shareholders must be either a US citizen or permanent resident
- The corporation cannot have more than 25% of its income derive from passive activities (i.e. money from rents, property ownership or investments)
- The corporation can only have one class of stock (i.e. no preferred stock, but you may have voting and non-voting common stock)
Even though you do not pay income taxes for the “S” Corporation a tax return must still be filed on behalf of the corporation.
What is the difference between a Corporation and an LLC?
An LLC can be more flexible than a corporation. With an LLC anyone can be an owner including another LLC or corporation or a foreign citizen. The LLC is a pass through entity meaning there is no corporate level tax return. All of the income and expenses are passed through to the owners who report their share of the income and expenses on their individual tax returns. Members of an LLC also can agree to divide the profits differently from time to time rather than split the profits according to share ownership.
Additionally, there is no limitation to the amount of passive income an LLC can earn. Finally, there is no “piercing of the corporate veil” of an LLC in Illinois. Therefore, if you forget to follow corporate formalities you won’t as easily lose your liability protection. But there is never a 100% guarantee of liability protection. You should still prepare annual minutes each and every year.
The downside is that the LLC is more costly to set up and maintain in Illinois. The filing fees and the annual fees are 2 to 2.5 times that of a Corporation. Another disadvantage is in the situation of a single member LLC. Sole owners of an LLC are taxed as if they are self-employed. This is usually not the best tax position for a business owner. Also, the sole owner of an LLC must be extra careful to treat the LLC as a separate legal entity. Some states have found single member LLC owners to be personally liable, essentially removing any liability advantage of forming an LLC in the first place, though Illinois has not yet followed these decisions.
Choosing what type of entity to form is a very important decision which can affect your personal liability and your tax situation. It is very important to obtain solid advice from someone with experience. The kendall county corporate attorney at Colosimo Law Office can provide you with essential information and sound legal advice so that you can make the best decision for your company’s future.
“S” Corporation vs. LLC
When comparing the “S” Corp vs. LLC you must consider your own personal situation. We highly recommend that you speak to an attorney before making your final decision since it can be a costly mistake not only in wasted filing fees but also in overpayment of taxes. We also highly recommend that you consider discussing your personal situation with an experienced CPA.
Both entities are pass through entities which means the income and expenses will get passed through the business to the individual owners’ tax returns. Therefore neither will pay any taxes on behalf of the business like a “C” Corporation.
Typically an “S” Corporation is better for tax purposes. With an “S” Corporation you will pay yourself, the owner, as an employee of the corporation. You pay yourself a reasonable salary for the type of work you perform, usually about 50% of the profits. Therefore you will pay the Social Security/FICA taxes on that 50% rather than 100% as you would if you were self-employed under an LLC or a sole proprietorship. This can be a great tax advantage since those taxes equal 15.3%. Therefore you’ll be paying 15.3% on 50% of the profits rather than 100% of the profits under an LLC.
Both the LLC and “S” Corporation have similar liability protection. Don’t be swayed just because the LLC is called a Limited Liability Company. Both limit the personal liability of the owners. In fact, the LLC was created to combine the liability benefits of a corporation but also to make it more flexible.
The LLC is better for some situations and again, it depends on your specific situation. For instance, if you don’t qualify for an “S” Corporation such as you are a foreign citizen or you are going to own property, then the LLC may be better suited to your needs. As mentioned above, the LLC can also be more flexible.
You must weigh what is most important to you. In most situations the “S” Corp is usually the best bet. In Illinois an “S” Corporation is cheaper to set up and maintain than an LLC, it can save you more money on income taxes, and if you use an experienced law firm like the Colosimo Law Office, you won’t have to worry about how to set up the corporation and maintain it, we can do that for you so you can concentrate on building your business.
What is a Series LLC?
Illinois is one of few states that allows an LLC to be formed as a Series LLC. When a Series LLC is set up, a parent LLC is created along with one or more Series or subsidiary LLCs. Each Series can have its own members, managers, officers and operating agreements. The benefits of a Series LLC is that each Series will have its own ownership, management and best of all its own liability. The liability of each Series is kept separate from the other Series.
This type of arrangement is especially beneficial to those who own several pieces of real estate. The parent can be set up as the holding company and each property is owned by a different series. This way if a liability is created on one of the properties (say a renter is injured) only the assets held in that Series will be at risk. The other properties would be protected.
Keep in mind that if the parent holding company assumes any risk by placing property or doing business with that Parent company, it will trickle down to each Series, therefore, placing the assets in each Series at risk. However, the liability will not flow up to the parent LLC.
There are a few caveats to keep in mind. Naming the Series is not pretty. Each Series will bear the full name of the parent LLC plus the name of the Series LLC. DBAs are not allowed for Series LLCs. Therefore, if you have a trade name you want to protect you must keep this in mind.
An additional benefit of a Series LLC is the cost savings from setting up separate LLCs for each property. Instead of paying to incorporate each LLC separately you can add a Series LLC for a lower price. Also, instead of paying a full annual report fee of $250 for each separate LLC, you will pay $250 for the parent plus $50 for each Series.
How a Series LLC is taxed depends on how it is set up. The IRS has not yet made a determination on how to tax Series LLCs, therefore, it is recommended that you speak to a tax professional familiar with Series LLCs regarding this issue.